Speaker 1: At his first National Prayer Breakfast as President of the
Speaker 1: United States, Donald Trump said he will quote get rid
Speaker 1: of and totally destroy the Johnson Amendment, that provision of
Speaker 1: the tax code. The Johnson Amendment prevents houses of worship,
Speaker 1: like other not for profit organizations, from directly or indirectly
Speaker 1: participating in political campaigns. The law has been in effect
Speaker 1: since nineteen fifty four, when it was introduced by then
Speaker 1: Senator Lyndon Johnson, and repealing it would require an Act
Speaker 1: of Congress. Here to talk with us about the Johnson
Speaker 1: Amendment and it's possible future are Alan Brownstein, a professor
Speaker 1: at U C. Davis School of Law, and Miriam Galston,
Speaker 1: a professor at George Washington University Law School. Alan, the
Speaker 1: Johnson omen has been around now for a very long time.
Speaker 1: UH churches seem to be able to participate in some
Speaker 1: political activities, but it prohibits them for being in campaigns.
Speaker 1: What exactly are the parameters of the Johnson Amendment? Big
Speaker 1: Johnson Amendment prohibits five or one three C organizations and
Speaker 1: those are nonprofit organizations that get very favorable taxics and status. UH.
Speaker 1: It prohibits them from endorsing political candidates. Participating in a
Speaker 1: political campaign for any candidate for political offices. If they
Speaker 1: do that UH, in theory, they could lose their tax
Speaker 1: ex and status. On the other hand, it should be
Speaker 1: clear that this provision of the tax code is very
Speaker 1: very loosely enforced. Its very unusual for the i r
Speaker 1: S to go after a religious organization on the grounds
Speaker 1: that they are unacceptably in permissibly participating in a political campaign.
Speaker 1: Miriam to that point, Since two thousand eight, pastors have
Speaker 1: openly defied the law on pulpit freedom Sunday, and many
Speaker 1: participating pastors even send their sermons to the i r
Speaker 1: S afterward. Only one has been audited by the i
Speaker 1: r S and none punished, according to the Washington Post.
Speaker 1: So what would be the impact of taking this law away?
Speaker 1: The impact could be great. Be set up that you
Speaker 1: had incorrectly stated what the UH Johnson Amendment does. It
Speaker 1: prohibits participation in political campaigns by all charities, UH, churches,
Speaker 1: other religious organizations, are any kind of charity. The Sierra
Speaker 1: Club a ARPS charitable entity. So it would have an
Speaker 1: impact not just on churches, which, as you pointed out, UM,
Speaker 1: in connection with which the probition is not enforced lately.
Speaker 1: Although the I R S used to audit churches and
Speaker 1: religious organizations, they don't anymore, but they still do audit
Speaker 1: other charities that engage in politics. Alan to to that
Speaker 1: point is there. It's not totally clear what the president
Speaker 1: is looking at, but can that they can churches be
Speaker 1: exempted from these requirements without also exempting those other charitable organizations.
Speaker 1: I think if you try to amend the tax code
Speaker 1: to permit the churches religious organizations to engage in partisan
Speaker 1: political activity, but continue to apply the provision against secular
Speaker 1: charitable organizations, that would raise very serious constitutional concerns. It
Speaker 1: could be a violation of either the free speech laws
Speaker 1: of the First Amendment or the establishment course on the
Speaker 1: First Amendment. Basically attacked exemption is a subsidy, and it's
Speaker 1: been interpreted by the courts to be a form of
Speaker 1: subsidies and more. The government generally has considerable discretion in
Speaker 1: determining which private organizations or activities it would choose to subsidize.
Speaker 1: Um there's a pretty strong argument that it can to
Speaker 1: do that in a viewpoint discriminatory way. That is to say,
Speaker 1: it couldn't decide only to subsidize Democrats and our Republicans.
Speaker 1: It couldn't decide only to subsidize right wing but not
Speaker 1: left league and speakers or organizations. Um. And there's a
Speaker 1: long line of Supreme Court authority that has determined that
Speaker 1: religion is a viewpoint of speech. So there'd be a
Speaker 1: pretty persuasive argument than if you limited the ability of
Speaker 1: secular nonprofits to engage in Protestant political activity but committed
Speaker 1: religious speakers and expressive organizations to do so, that you'd
Speaker 1: be violating the free speech course in the First Amendment.
Speaker 1: And there's also an argument that doing so would violate
Speaker 1: the establishment cause. And again we have some case President
Speaker 1: President that says that if you give an exemption, a
Speaker 1: tax exemption to religious speakers, in that case it was
Speaker 1: a religious publisher, but you don't give comparable tax exemptions
Speaker 1: to secular publishers, that that would violate the establishment cause.
Speaker 1: I'm Michael Best with June Grosso and Greg Store. This
Speaker 1: is Bloomberg law, and we are talking about the Johnson Amendment,
Speaker 1: which prohibits UH not for profit entities, including religious organizations,
Speaker 1: from participating in political campaigns. The President says that he
Speaker 1: will destroy it in his words because in his view,
Speaker 1: it prevents clergy from speaking freely on politics and without
Speaker 1: fear of retribution. We're talking to Alan Brownstein of the U. C.
Speaker 1: Davis School of Law and Miriam Galston of George Washington
Speaker 1: University Law School. Alan, one of the things that is
Speaker 1: interesting here is that people make donations to not for
Speaker 1: profit entities and they get a tax deduction, whereas for
Speaker 1: political donations they don't get that tax deduction. What would
Speaker 1: be the implications of allowing in the context of campaign contributions,
Speaker 1: what would be the implications of allowing UM not for
Speaker 1: profits like churches to speak out in political campaigns. Well,
Speaker 1: if you repeal the Johnson Amendment and allowed all of
Speaker 1: five and one seas three organizations to commit essentially an
Speaker 1: unlimited amount of their resources to political campaigns, you would
Speaker 1: essentially make donations for the election of political candidates tax
Speaker 1: deductible UM and memories is two concerns. One is, tax
Speaker 1: deductions for charity are only valuable the donors who itemize
Speaker 1: their tax returns, who basically earn enough income to take
Speaker 1: advantage of these deductions. So what you would be doing
Speaker 1: is creating a two tier system. Americans who are wealthy
Speaker 1: enough to take charitable deductions, would be able to contribute
Speaker 1: more money more after tax money UH to political candidates
Speaker 1: and campaigns. Then would less wealthy Americans with lower incomes
Speaker 1: who can't take advantage of charitable deductions. The other consequence
Speaker 1: of this repeal would be that you would simply infuse
Speaker 1: more money into election campaigns. If someone donated a thousand
Speaker 1: dollars during the last election campaign, either for her Hillary
Speaker 1: Clinton or for Donald Trump, UM, if they could and
Speaker 1: that donation would not be tax deductible or undercurrent rules, UM,
Speaker 1: if you repeal the Johnson Amendment, UH, they could donate
Speaker 1: fourteen hundred dollars to a five or one rec organization
Speaker 1: that is going to use all of that money for
Speaker 1: an electoral campaigning UH. And you've increased the amount that
Speaker 1: they could contribute to political campaigns by So you know,
Speaker 1: if you think that there really isn't enough private money
Speaker 1: in politics and in elections, and it would be good
Speaker 1: to have a great deal more money being contributed to
Speaker 1: election campaigns, um, and then you might support this repeal.
Speaker 1: What you take on this, I mean, are we create
Speaker 1: potentially creating It almost sounds like this whole new category
Speaker 1: of super duper packs here well, I agree with Alan
Speaker 1: that money would shift from sea fours and from to
Speaker 1: threes if the Johnson Amendment were repealed. But I have
Speaker 1: UH two caveats that are important. One is that in
Speaker 1: order to be a title to a charitable exemption in
Speaker 1: the first place, UM, an entity has to have a
Speaker 1: charitable mission, and it cannot have even one substantial non
Speaker 1: charitable purpose, even one UH substantial UH non charitable purpose,
Speaker 1: and it's no longer entitled to the exemption. Furthermore, UM,
Speaker 1: it's also the case that if I a charity provides
Speaker 1: more than a small amount of private benefit, it would
Speaker 1: also no longer be entitled to tax exemption. So the
Speaker 1: idea that UM money could flow as freely through a
Speaker 1: charity as it would flow through a UH pack, I
Speaker 1: think is UM exaggerated. The second point I wanted to
Speaker 1: make is that UM the main, although not the only
Speaker 1: bill that's been introduced today was by Steve Scale, and
Speaker 1: it's it's called legislation to repeal the Johnson Amendment. But
Speaker 1: when you read it, you see it's extremely narrowly crafted.
Speaker 1: Organizations charitable organizations are only permitted to engage in political
Speaker 1: UH speech in the ordinary course of the organization's regular
Speaker 1: and customary activities in carrying out its charitable purpose um.
Speaker 1: And if any expenditure is only diminimus. So what that
Speaker 1: means is if we um if this is the kind
Speaker 1: of proposal for repeal that would get enacted. A pastor
Speaker 1: could make comments from the pulpit um as long as
Speaker 1: they were part of a servant, but not hold a
Speaker 1: special event at the church to promote one or another candidate.